Conclusions

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established conventions of deference to powerful institutions. On this view, an observer might explain much of the liquidation process in terms of the exalted positions that English insolvency law has long given to powerful secured creditors.348 Linked to this vision are notions that modern English liquidation is driven in shape and operation by those who possess information and skill. It is, on this view, the preserve of the repeat players, as exemplified by the manner in which IPs dominate creditors’ meetings.

Different portraits of liquidation can also be placed in opposition to each other. On the one hand, it can be seen as a process in which professionals act in a detached way so as to ensure that creditors are dealt with fairly and the public interest is served by monitoring the behaviour of directors ex post facto. On the other, liquidation can be seen in strictly private interest terms, with IPs, creditors, directors and others all pursuing their own interests in a highly focused manner.

Alternative visions of liquidation can also be generated by moving one’s disciplinary viewpoint away from law. Economists would be liable to espouse a private interest approach but sociologists and anthropologists, for instance, would emphasise the social and cultural contexts within which liquidation takes place and the extent to which liquidation is driven by group-based ideas, understandings and traditions. Psychologists might be expected to place more emphasis on the attitude of the individual and might focus on the approaches that individual IPs tend to adopt because of their background and training.

What, though, do these different ways of seeing liquidation tell us about issues of design, reform and evaluation? A key message is that achieving better performance on the efficiency, expertise, accountability and fairness fronts will not come simply through changes in the legal rules. The world is not that rule-centred and other approaches have to be embraced.349 Training, for example, is a strategy with considerable potential. The liquidation process may be improved through refinements in the training of IPs (in, for example, consultative techniques) or in directorial training (to cover ongoing company contexts and insolvency or near insolvency situations and rescue processes, as well as information-gathering techniques).350 Institutional roles, moreover, might be reconceived so that, for instance,

348See ch. 3 above and ch. 15 below.

349On the extent to which behaviour is rule-governed see, for example, Mary Douglas’ discussion of ‘grid’ and ‘group’ relations in M. Douglas, In the Active Voice (Routledge, London, 1982).

350See V. Finch, ‘Company Directors: Who Cares About Skill and Care?’ (1992) 55 MLR 179.

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the part played by the courts in scrutinising processes is reformulated. One way in which this could be done is to replace resort to court with other processes, such as the use of administrative powers.351 Liquidators, on this model, could be empowered to adopt a designated administrative power to ‘call in’ property that has been transferred out of the estate in a suspect manner. Such a regime could make resort to court352 a secondary matter rather than a primary process in relating to the relevant set of issues.353

Finally, a fresh look might be taken at the overall objectives of the liquidation process – a review that might bear in mind the balance between ends such as efficiency and fairness. Consistency between this area of insolvency law and others is a matter to be adverted to here. It would be muddled thinking to give efficiency primacy of place in relation to one insolvency process but (without reason) to give greater emphasis to, say, fairness or accountability in another. There may, of course, be reasons for differences of emphasis but coherence and clarity demand that we should be clear about these. One such reason may be that liquidation, unlike other insolvency processes, can be seen in non-rescue terms and as relating to a narrower set of interests than, say, administration. To conclude, there is, as noted, much to be done to refine insolvency law as it affects liquidation but insolvency law and processes must be seen in the round and we should be aware of the improvements that can be gained by looking beyond the narrowly legal and towards adjustments in cultures, traditions, incentives, expectations, institutions, training and roles.

351On mediation and alternative dispute resolution see M. Humphries, E. Pavlopoulos and P. Winterborne, ‘Insolvency, Mediation and ADR’ (1999) Insolvency Bulletin 7.

352See Insolvency Act 1986 s. 208 (misconduct in the course of winding up), s. 234 (getting in the company’s property), s. 235 (duty to co-operate with the office holder), s. 236 (inquiry into company’s dealings, etc.).

353It should be remembered, as noted above (pp. 569–70), that human rights issues may arise. Under the Human Rights Act 1998 and Article 6 of the Convention there is a right to an independent and impartial tribunal. If an office holder determines the rights of a person, there may be a lack of independence where the office holder is an administrative receiver: see generally Simmons and Smith, ‘Human Rights Act 1998’; Trower, ‘Human Rights’.